KOONS WINS COPYRIGHT LAWSUITJeff Koons has won one for "fair use." The neo-Pop artist, who famously appealed his 1988 String of Puppies
copyright-infringement case all the way to the Supreme Court -- and
lost -- has been dragged into court once again for copying another
artist’s work. For a seven-painting commission for the Deutsche Guggenheim Berlin, Koons drew on part of a photograph taken by Andrea Blanch titled Silk Sandals by Gucci and published in the August 2000 issue of Allure
magazine to illustrate an article on metallic makeup. Koons took the
image of the legs and diamond sandals from that photo (omitting other
background details) and used it in his painting Niagara, which also includes three other pairs of women’s legs dangling surreally over a landscape of pies and cakes.

In his court filing, Koons' lawyer, John Koegel, said that Niagara
is "an entirely new artistic work. . . that comments on and celebrates
society's appetites and indulgences, as reflected in and encouraged by
a ubiquitous barrage of advertising and promotional images of food,
entertainment, fashion and beauty."

In his affidavit in the case, Koons noted that it was important to use the photo from Allure,
rather than painting a model’s legs himself. "My paintings are not
about objects or images that I might invent, but rather about how we
relate to things that we actually experience. . . . Therefore, in order
to make statements about contemporary society and in order for the
artwork to be valid, I must use images from the real world. I must
present real things that are actually in our mass consciousness." [emphasis mine]

In his decision, judge Louis L. Stanton of U.S. District Court found that Niagara
was indeed a "transformative use" of Blanch's photograph. "The
painting's use does not 'supersede' or duplicate the objective of the
original," the judge wrote, "but uses it as raw material in a novel way
to create new information, new esthetics and new insights. Such use,
whether successful or not artistically, is transformative." [emphasis mine]

The
detail of Blanch's photograph used by Koons, it seems, is only
marginally copyrightable. Blanch has no right to the appearance of the
Gucci sandals, "perhaps the most striking element of the photograph,"
the judge wrote. And without the sandals, only a representation of a
women's legs remains -- and that is "not sufficiently original to
deserve much copyright protection."

Blanch, a 20-year veteran of the photo world -- she started out as an assistant for Richard Avedon, and in 1998 published Italian Men: Love & Sex,
a book of interviews and photographs -- told Artnet News that she had
discovered Koons' use of her image by accident, during a visit to his
2002 exhibition at the Guggenheim Museum in New York. "At first
I was flattered," she said. She soon came to a different conclusion
after thinking about the situation. "I really believe that if the
person is living, you have to ask permission!"

The battle
is not over yet -- Blanch has filed an appeal. So far, her costs have
been minimal; her lawyer has taken the case on a contingency basis. But
if she loses, she may have to pay the defendants’ costs, and since she
has sued Deutsche Bank and the Guggenheim along with Koons -- she
claims that the two institutions which commissioned the work share
responsibility for the alleged copyright violation -- the eventual bill
could be rather large.

KOONS WINS COPYRIGHT LAWSUITJeff Koons has won one for "fair use." The neo-Pop artist, who famously appealed his 1988 String of Puppies
copyright-infringement case all the way to the Supreme Court -- and
lost -- has been dragged into court once again for copying another
artist’s work. For a seven-painting commission for the Deutsche Guggenheim Berlin, Koons drew on part of a photograph taken by Andrea Blanch titled Silk Sandals by Gucci and published in the August 2000 issue of Allure
magazine to illustrate an article on metallic makeup. Koons took the
image of the legs and diamond sandals from that photo (omitting other
background details) and used it in his painting Niagara, which also includes three other pairs of women’s legs dangling surreally over a landscape of pies and cakes.

In his court filing, Koons' lawyer, John Koegel, said that Niagara
is "an entirely new artistic work. . . that comments on and celebrates
society's appetites and indulgences, as reflected in and encouraged by
a ubiquitous barrage of advertising and promotional images of food,
entertainment, fashion and beauty."

In his affidavit in the case, Koons noted that it was important to use the photo from Allure,
rather than painting a model’s legs himself. "My paintings are not
about objects or images that I might invent, but rather about how we
relate to things that we actually experience. . . . Therefore, in order
to make statements about contemporary society and in order for the
artwork to be valid, I must use images from the real world. I must
present real things that are actually in our mass consciousness." [emphasis mine]

In his decision, judge Louis L. Stanton of U.S. District Court found that Niagara
was indeed a "transformative use" of Blanch's photograph. "The
painting's use does not 'supersede' or duplicate the objective of the
original," the judge wrote, "but uses it as raw material in a novel way
to create new information, new esthetics and new insights. Such use,
whether successful or not artistically, is transformative." [emphasis mine]

The
detail of Blanch's photograph used by Koons, it seems, is only
marginally copyrightable. Blanch has no right to the appearance of the
Gucci sandals, "perhaps the most striking element of the photograph,"
the judge wrote. And without the sandals, only a representation of a
women's legs remains -- and that is "not sufficiently original to
deserve much copyright protection."

Blanch, a 20-year veteran of the photo world -- she started out as an assistant for Richard Avedon, and in 1998 published Italian Men: Love & Sex,
a book of interviews and photographs -- told Artnet News that she had
discovered Koons' use of her image by accident, during a visit to his
2002 exhibition at the Guggenheim Museum in New York. "At first
I was flattered," she said. She soon came to a different conclusion
after thinking about the situation. "I really believe that if the
person is living, you have to ask permission!"

The battle
is not over yet -- Blanch has filed an appeal. So far, her costs have
been minimal; her lawyer has taken the case on a contingency basis. But
if she loses, she may have to pay the defendants’ costs, and since she
has sued Deutsche Bank and the Guggenheim along with Koons -- she
claims that the two institutions which commissioned the work share
responsibility for the alleged copyright violation -- the eventual bill
could be rather large.